Trial Advocacy Manual

70 Pages·2003·0.17 MB·English

Trial Advocacy Manual

DPK Consulting

July 2003

Author: Michael Genelin
Project Number: 294-0007-34
Strategic Objective Number: SO3 A180
USAID – West Bank/Gaza: 294-C-00-99-00159-00
Trial Advocacy Manual

Table of Contents

SUBJECT PAGE

1- Opening statement 3-7

2- Direct examination 8-26

3- Cross-examination 27-41

4- Final argument 42-53

5- Experts 54-57

6- Real and Demonstration Evidence 57-70

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OPENING STATEMENT

The prosecutor should take full advantage of the opening statement to present a case
in the clearest most positive light possible. While prosecutors have many individual
styles this information is aimed at helping you to use your strengths and your style to
present your case in the most effective manner possible, keeping in mind your legal
objectives.

I. PURPOSE OF OPENING STATEMENT:

The purpose of an opening statement is to inform the a judge(s) of the evidence the
prosecution intends to present, and the manner in which the evidence relates to the
prosecution’s theory of the case. Nothing prevents the statement from being presented
in a story-like manner that holds the attention of a judge and ties the facts and law
together in an understandable way.

As your first opportunity to address the court, your opening statement should serve
three purposes:

1. Communicate the facts and theory of the case.
2. Persuade (not argue)
3. Establish your credibility.

Although the prosecutor is certainly not legally required to make an opening
statement, don’t give up this opportunity to address the judge(s) and convince them of
the defendant’s guilt.

II. PREPARING FOR OPENING STATEMENT

Preparation cannot be stressed enough at this stage of the trial. A good trial attorney
would never think of examining a witness or doing closing argument without proper
preparation, and yet this same type of care and preparation is often neglected at
opening statement because the attorney feels “I know what my case is about so I can
improvise”.

A. Select a Theme:

Prior to starting any trial, you should give serious thought to the facts and
circumstances of your case and develop a theme. The theme of your case is not to be
confused with the theory of the case. The theory of the case is generally “how it
happened” while the theme is the common experience that judge(s) will be able to
relate to: an emotional tie. In developing the theme think about your experiences,
what emotions or feelings do you have as you consider the facts of your case.
Sometimes it’s helpful to describe the facts of your case to a friend and find out what
they think about it. Remember, in developing a theme you’re only limited by your
own creativity, and the evidence you will present.

Examples:
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Callousness of defendant- “Defendant committed this crime…. Without
feeling or emotion”.
Irresponsibility of defendant- “All defendant cared about was partying when
he drank and drove that evening”.
Selfishness/ Greed- “Defendant’s sole motivation was greed and avarice”.

B. Make an Outline:

How many times after addressing a judge(s) have you thought to yourself “I forgot to
mention…?” Making an outline of the key facts and points which must be brought to
the judges attention will avoid this problem. An outline also helps you to see
relationships of evidence and groupings of issues.

It is important to note that making an outline does not mean writing out your opening
statement in its entirety. When the statement is completely written, it may cause you
to rely on it as a crutch, or worse yet, read it to the judge(s).

C. Practice:

Practice your opening statement in front of anyone you can get to listen.
Again, getting feedback can be very helpful in making your statement as clear and
understandable as possible.

Never attempt to “improvise” your opening statement.

III. PRESENTING THE OPENING STATEMENT

The opening statement can be broken down into three parts: 1) The Introduction; 2)
Fact Narration; and 3) the Exit Line or Conclusion.

A. The Introduction:
The first words out of your mouth should be designed to grab the judge(s) attention.
Start with a strong opening phrase utilizing a key point or main theme of your case.

Step directly into the story.

Consider telling the story from a specific point of view (victim, witness, officer, or
defendant), this makes it more interesting and tends to put the judge(s) in the shoes of
the person whose point of view you select.

Pull the judges in emotionally.

Avoid using standard introductory phrases (they waste time):

Remember, the judge already know who you are and why they’re there, what they
want to know most at this point is, “what happened”.

B. Fact Narration:

1. THE STORY
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One of the goals of opening statement is to get the judge(s) to remember what you are
saying and to have your view of the evidence in mind as they evaluate the testimony.

Develop the story. Telling a story is probably one of the best ways to give a
persuasive opening statement that judges will remember. it’s okay to Story telling is
the art of bringing an event to life through the use of details: Example “July 20, a
warm and sunny, summer day, found Officer ______ patrolling the eastbound lanes of
the Main Street…”.

Here are some things to consider to help in the development of your story:
1. What are the most important facts for your theory of the case?
2. What will the judge(s) most easily relate to in your case?
3. What physical items of evidence* would be helpful to the judge(s)?
4. What details can be elicited during testimony to create a picture for
judges?
5. Should the story be told in chronological order or some other fashion?
6. How would you describe the case if a friend asked, “What happened?”

Story telling technique becomes easier with practice and is well worth the time and
effort necessary to develop it. Nothing will cause a judge to tune-out quicker than a
monotonous recitation of “just the facts”.

2. LANGUAGE

Use Descriptive Words When Telling the Story

Instead of: “She heard the sound of a bone breaking”
Try: “She heard the crack and splinter of breaking bone”
Try: “He got out of the car and walked toward the officer

Keep Sentences Short and Simple

Remember the judges must be able to follow and understand what you are saying. It’s
also more emphatic and more easily retained by a judge.

Instead of: “He choked, beat, and stabbed her”
Try: “He choked her. He beat her. He stabbed her”

3. VOICE MODULATION

A monotone delivery is tuned out. No matter how great your story is, if the judges
tune out and stop listening, they simply won’t get it. Thus, delivery of the message is
important. It gets content across.

Use your voice to help set the mood or tone;

Volume:

Note: You should use exhibits in your opening statement whenever possible!
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Increase to wake up a judge and draw attention (also effective when quoting
defendant)
Whisper to focus attention, create drama
Vary to prevent boredom

Rate:
High speed for a long time is hard on the judge as well as the court reporter
Too slow allows the mind to wander
Vary according to content of statement, and for transition
Faster = excitement, tension, intensity of action
Slower = serious, subdued, focused
Silence (is golden)
Creates drama
Places emphasis on that which is to follow
Provides transition
Allows judges to absorb what’s been said
(Also allows you to collect your thoughts)

4. MOVEMENT

When addressing the judges you should neither stand in one spot like a statue, nor
march up and down. When you do move, it should be with a purpose, such as:
- to signal a transition
- to use exhibits
- to make a point

Eliminate nervous movement:
- Pacing
- Rocking back and forth
- Empty pockets
- Keep hands free

5. ESTABLISH RAPPORT

This is your first opportunity to make a first impression on the judges. Obviously,
your professionalism and preparation is a big part of establishing a rapport with the
judges, but you should also consider the following:
- Make eye contact with each judge.
- Use notes sparingly
- Don’t try to intimidate judges.

IV. The Conclusion:

- End on a strong point
- If you feel it necessary to comment on the expected defense,
keep it brief
- Tell them what you want from them
Example: “At the end of the case we will ask you to find that the
defendant is guilty!

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A FEW ADDITIONAL SUGGESTIONS

Be yourself- Select the style and methods that suit your personality

Confront problems or weaknesses in your case- by addressing matters such as a
victim with a criminal record, a recanting victim, etc. you enhance your credibility
while diffusing the issue

Don’t overstate your case- Don’t make promises or claims that you can’t produce;
they will come back to haunt you

Avoid too much detail- At this stage, you will only bore the judges and they will
tune you out.

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DIRECT EXAMINATION

I. GOALS AND OBJECTIVES

A. To present evidence, prove the elements beyond a reasonable doubt, and
create a clear record on appeal.
- introduce proof by testimony and exhibits.
- Elicit all testimony which supports the theory of the case.
- Make the witness appear credible.

B. To evoke the interest and desire on the part of the judges to do
what is right and necessary: convict the defendant.
- Ensure that the testimony is clear to the judges.
- Persuade the judges that the testimony is accurate.
- Minimize the witness’s weaknesses and maximize his/her strengths.

C. To nullify what you expect from the defense, both on cross examination of
each witness and as part of your opponent’s case in chief.

D. Other Considerations
- Utilize effective repetition to make your points.
- Allow the witness to narrate what happened, to explain, to build context,
and in effect, to come alive on the stand.
- Pose questions that the witness will clearly understand.
- Ask questions in the simplest form possible.
- Avoid objectionable questions.
- Present testimony in an order that maximizes its impact.
- Control the witness.
- Lay proper foundations for all evidence.
- Mark and identify all exhibits.
- Make and preserve an accurate trial record.

II. PREPARATION FOR DIRECT EXAMINATION

A. Establish a Theme/ Rationale for the Trial
- Develop a compelling “factual theme” that can be carried through the trial
and which will set up, and be carried forward, by your closing argument.
- Structure Direct Examination to reinforce and refresh this theme during the
presentation of your case.

B. What must be proved
- Review elements of all crimes charged in the information and determine
which admissible evidence proves each element and connects defendants
to each count.
- Develop theory of case i.e., commentated murder, aider and abettor,
conspiracy, etc. as well as a theme of the case i.e., pillow case rapist.
- Pull and review all cases which relate to the charged offenses. Determine
whether facts of case warrant tailored instructions.

C. Learn the facts of your case
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- The police reports and attachments.
- Any investigator notes or witness interviews.
- Comments or notes or other presents or opperand.
- Defendant’s criminal and records, any tapes, medical records, chemical
tests.

D. Examine the evidence
- Go look at the booked evidence.
- Develop and examine all photographs.
- Get a copy of he booking photo.
- Obtain and listen to all tapes.
- Visit the crime scene and other relevant locations.

E Determine what other evidence may exist
- Medical records, bank records, store videotapes, security reports, witness
notes, transcripts of tapes or any other “paper trails”.
- Determine if further investigation is needs.
- Review transcripts of prior proceedings.
- Begin noting the gaps in reports, including whatever witness statements
there are – what questions you need answered.

F. Organize your Exhibits
- Exhibits and other visual aids are extremely important in bringing your
case alive for the jury. A “visual trial” is a compelling trial.
- Use photographs, charts, diagrams, maps etc. Prepare in advance since few
witnesses are comfortable or skilled at free handing exhibits in court.
- Have plastic overlays for exhibits you expect will be marked by more than
one witness in court.
- Organize all exhibits- decide on the order in which they will be presented
at trial and prepare an exhibit list for the court, defense counsel and
yourself.
- Determine through which witness each exhibit will be introduced.
- Review requirements for laying the foundation for introduction of exhibits.
- Anticipate and research admissibility issues as to each exhibit.
- Consider videotaping the crime scene.

G. Preparing a Trial Notebook (For More Complex Cases)
- Three ring binder with dividers.
- Number the dividers.
- Make a topic index of the dividers for quick reference.
- Index of contents.
- Complaint with charges.
- Summary of charges (in simple English).
- Element sheet to check off the elements as each is established in trial.
- List of witnesses.
- List of exhibits.
- Opening statement outline.
- Police reports.
- Other reports/ investigator notes.
- Direct examination for each witness (lay and expert):
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- Outline of witness testimony- use only an outline.
- Exhibits to be used with each witness- have copies for use as
exhibit for defense attorney, for the court, for use during direct
examination- 4 total.
- Copies of statements/ notes including copies of police reports or
statements for each witness.
- Cross examination outlines.
- Anticipate cross examination.
- Review trial preparation material for confrontation issues.
- Which facts are contested?
- What is your opponent’s objective with the witness?
- Copies of all document exhibits.
- Closing argument outline.
- Pertinent case law/ statutory authority.
- Subpoena/ witness information.
- Transcripts of tapes/ prior court proceedings.
- List of motions.
- List of objections.

G. Interview the Witnesses
- Discuss testimony with each witness- including officers.
- Go over testimony in stages.
- Have the witness tell you the whole story in a narrative.
- Go back over story in segments- i.e., establish “frames of reference”.
- Ask questions to fill in the gaps.
- Ask about notes, documents, exhibits witness may have.
- Have witness tell you everything- whether or not it is in the report;
anything else you want to tell?
- Elicit as much information as you can concerning witnesses’ background-
past and present- occupations, hobbies, professional training, interests that
might be useful in:
- Personalizing the witness.
- Establishing his/her qualifications.
- Establishing witness’s accuracy and credibility.
- Uncover any bias, interest or prejudice.
- Have the witness review prior statements or his/her report in order to
refresh their recollection and memory. Have the witness explain any
inconsistencies, discrepancies or mistakes.
- Find out if the witness has talked to the defense and what was said.
- Have the witness handle the evidence or exhibit (or at least tell them about
the item) so they will be familiar with the physical object when they
testify.
- If the witness is going to draw a diagram or perform an act in the
courtroom, make sure they practice it first so as to avoid embarrassment
and to insure a convincing performance.

H. Pre-trial Interview
- This interview should be conducted prior to the date of trial. At this time,
you should put the witness at ease and prepare him/her for appearing in
court.
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